sustained EB-3 Case: Nursing

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U.S. Department of Homeland Security 
20 Mass, N.W. Rm. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
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FIT .E: WAC 04 096 52530 Office: CALIFORNIA SERVICE CENTER Date: Q 3 20~~ 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to 
section 203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 9 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS : 
This is the decision of the Administrative Appeals Office in your case. All documents have been 
returned to the office that originally decided your case. Any further inquiry must be made to that 
office. 
~6beL P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 096 52530 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, California Service Center, and is now 
before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. 
The petitioner is a skilled nursing facility. It seeks to employ the beneficiary permanently in the United States as 
a registered nurse. The petitioner asserts that the beneficiary qualifies for blanket labor certification pursuant to 
20 C.F.R. 
 656.10, Schedule A, Group I. 
 The director determined that the evidence submitted does not 
demonstrate that the notice of filing the Application for Alien Certification was made according to the regulation 
at 20 C.F.R. fj 656.20(g)(l). 
On appeal,' petitioner submits an explanatory letter and additional evidence. 
Section 203(b)(3) of the Immigration and Nationality Act (the Act), 8 U.S.C. $ 1153(b)(3), provides for the 
granting of preference classification to qualified immigrants who are capable, at the time of petitioning for 
classification under this paragraph, of performing shlled or unskilled labor, not of a temporary or seasonal nature, 
for which qualified workers are not available in the United States. This section also provides for the granting of 
preference classification to qualified immigrants who hold baccalaureate degrees and are members of the 
professions. 
In this case, the petitioner has filed an Immigrant Petition for Alien Worker (Form 1-140) for classification under 
section 203(b)(3)(A)(i) of the Act as a shlled worker (registered nurse). Aliens who will be employed as nurses 
are listed on Schedule A. Schedule A is a list of occupations found at 20 C.F.R. § 656.10. The Director of the 
United States Employment Service has determined that an insufficient number of United States workers are able, 
willing, qualified, and available to fill the positions available in those occupations, and that the employment of 
aliens in such occupations will not adversely affect the wages and worhng conditions of United States workers 
similarly employed. 
The regulation at 20 C.F.R. tj 656.10(a)(2) specifies that professional nurses are among those qualified for 
Schedule A designation if they have passed the Commission on Graduates of Foreign Nursing Schools 
(CGFNS) Examination or hold a full and unrestricted license to practice professional nursing in the state of 
intended employment. 
The regulation at 20 C.F.R. § 656.22 (Applications for labor certification for Schedule A occupations.) (b)(2) 
states that [the Application for Alien Employment Certification form shall include:] Evidence that notice of 
filing the application for Alien Employment Certification was provided to the bargaining representative or the 
employer's employees. 
The regulation at 20 C.F.R. 5 656.20(g)(l) states that: 
. . . In applications filed under $4 656.21 (Basic Process), 656.21a (Special Handling) and 
656.22 (Schedule A), the employer shall document that notice of the filing of the Application 
for Alien Employment Certification was provided: 
1 
There is a second preference visa petition filed by the petitioner for the beneficiary (WAC 05 083 
50206). The director has informed the petitioner in that petition review process that a decision is 
necessary on the subject petition since the visa benefit sought is the same in the second petition. 
WAC 04 096 52530 
Page 3 
(i) To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought in the 
employer's location(s) in the area of intended employment. 
(ii) If there is no such bargaining representative, by posted notice to the employer's 
employees at the facility or location of the employment. The notice shall be posted for at least 
10 consecutive days. The notice shall be clearly visible and unobstructed while posted and 
shall be posted in conspicuous places, where the employer's U.S. workers can readily read the 
posted notice on their way to or from their place of employment. Appropriate locations for 
posting notices of the job opportunity include, but are not limited to, locations in the 
immediate vicinity of the wage and hour notices required by 20 CFR 5 16.4 or occupational 
safety and health notices required by 20 CFR 1903.2(a). 
* * * 
The regulation at 20 C.F.R. 8 656.20 (g)(S)states that: 
(8) If an application is filed under the Schedule A procedures at 8 656.22 of this part, the 
notice shall contain a description of the job and rate of pay, and the requirements of paragraphs of this 
section. 
The regulation at 20 C.F.R. 8 656.20 (g)(3) (ii) and (iii) states that: 
Any notice of the filing of an Application for Alien Employment Certification shall: 
(ii) State that the notice is being provided as a result of the filing of an application for 
permanent alien labor certification for the relevant job opportunity; and 
(iii) State that any person may provide documentary evidence bearing on the application to 
the local Employment Service Office andfor the regional Certifying Officer of the 
Department of Labor. 
The regulation at 20 C.F.R. tj 656.22(~)(2) states: 
An employer seeking a Schedule A labor certification as a professional nurse (§ 656.10(a)(2) 
of this part) shall file, as part of its labor certification application, documentation that the 
alien has passed the Commission on Graduates of Foreign Nursing Schools (CGFN) 
Examination; or that the alien holds a full and unrestricted (permanent) license to practice 
nursing in the State of intended employment. 
In a memo dated December 20, 2002, the Office of Adjudications of the CIS issued a memo instructing Service 
Center to accept a certified copy of a letter from the state of intended employment stating that the beneficiary has 
passed the National Council Licensure Examination for Regstered Nurses (NCLEX-RN) and is eligible to 
receive a license to practice nursing in that state in lieu of either having passed the CGFNS examination or 
currently having a license to practice nursing in that state. 
WAC 04 096 52530 
Page 4 
An employer shall apply for a labor certification for a Schedule A occupation by filing an Application for Alien 
Employment Certification (Form ETA 750 at Part A) in duplicate with the appropriate U.S. Citizenship and 
Immigration Services office. The Application for Alien Employment Certification shall include: 
1. 
 Evidence of prearranged employment for the alien beneficiary by having an employer 
complete and sign the job offer description portion of the application form. 
2. Evidence that notice of filing the Application for Alien Employment Certification was 
provided to the bargaining representative or the employer's employees as prescribed in 20 C.F.R. 
6 656.20(g)(3). 
In this case, Form 1-140 was dated January 26, 2004 and it was filed on February 23, 2004. On November 1, 
2004, the Director, California Service Center, issued a decision in this matter. The director stated that the 
documentation submitted did not conform to the requirements of the notice of filing as recited above 
The director found that the petitioner failed to comply with the regulation at 20 C.F.R. 656.20(g)(l) and (g)(8). 
The director found that petitioner failed to state in the notice of filing pertinent information needed for its 
approval. Specifically, the petitioner failed to note in the job posting detailed job description, rate of pay, job, and 
education requirements needed for the position, and, that any person may provide documentary evidence bearing 
on the application to the to the local state Employment service Office andlor the Regonal Certifying Officer of 
the Department of Labor. The director found that the petition was not, therefore, approvable on the date of filing 
and denied the petition. 
The regulation at 20 C.F.R. 656.22(e) states in part: 
An Immigration Officer shall determine whether the employer and alien have met the applicable 
requirements of Sec. 656.20 of this part, of this section, and of Schedule A . . . 
(2) The Schedule A determination of INS [CIS] shall be conclusive and final. The employer, 
therefore, may not make use of the review procedures at Sec. 656.26 of this part. 
On appeal, petitioner asserts as follows: 
We respectfully request the Service to reopedreconsider this motion because the Notice of 
Vacancy that was posted by Downey Community Health Center was inadvertently omitted as an 
attachment to the petition filed for the . . . [the beneficiary] . . . . 
The regulation at 20 CFR 656.20(g)(l)(i) and (ii) states: 
(g)(l) In applications filed under fj 5 656.2 1 (Basic Process), 656.2 1 a (Special Handling) 
and 656.22 (Schedule A), the employer shall document that notice of the filing of the 
Application for Alien Employment Certification was provided: 
(i) To the bargaining representative(s) (if any) of the employer's employees in the 
occupational classification for which certification of the job opportunity is sought in the 
employer's location(s) in the area of intended employment. 
WAC 04 096 52530 
Page 5 
(ii) If there is no such bargaining representative, by posted notice to the employer's employees at 
the facility or location of the employment. The notice shall be posted for at least 10 consecutive 
days. The notice shall be clearly visible and unobstructed while posted and shall be posted in 
conspicuous places, where the employer's U.S. workers can readily read the posted notice on 
their way to or from their place of employment. Appropriate locations for posting notices of the 
job opportunity include, but are not limited to, locations in the immediate vicinity of the wage 
and hour notices required by 20 CFR 5 16.4 or occupational safety and health notices required by 
20 CFR 1903.2(a). 
According to petitioner's explanatory letter in this matter dated January 26, 2004, the petitioner stated that 
"concurrent with the filing of this application" we are posting a copy of the attached notice at our office for 10 
consecutive days staring on January 26, 2004. The petitioner stated that in the letter that it does not have a 
bargaining agent. 
The above notice provided with the letter did state the following required notices under the aforementioned 
regulations: the notice of filing the Application for Alien Certification; did state that applicants should report to 
the employer, not to the local Employment Service office; did state that the notice is being provided as a 
result of the filing of an application for permanent alien labor certification for the relevant job opportunity; 
did state a detailed job description, rate of pay, job, and education requirements needed for the position and, did 
to state that any person may provide documentary evidence bearing on the application to the local 
Employment Service Office and/or the regional Certifying Officer of the Department of Labor according to 
the regulation at 20 C.F.R. § 656.20(g)(l) and (g)(8). 
This office finds the evidence sufficient to show that notice according to 20 CFR 656.20 was posted. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361. 
The petitioner has met that burden. 
ORDER: The appeal is sustained.